Larry Catá Backer's comments on current issues in transnational law and policy. These essays focus on the constitution of regulatory communities (political, economic, and religious) as they manage their constituencies and the conflicts between them. The context is globalization. This is an academic field-free zone: expect to travel "without documents" through the sometimes strongly guarded boundaries of international relations, constitutional, international, comparative, and corporate law.

Thursday, January 25, 2018

New Draft Posted: "The Ideal and Practice of Chinese Comprehensive Constitutionalism in the 'New Era'"

The Article considers the evolution of Chinese Constitutionalism in the wake of the last, 19th, Congress of the Chinese Communist Party. While many in the West used the opportunity of the Congress to engage in high level speculation about the politics embedded within the event (see, e.g., here, here, here, here, here, and here), few might have appreciated the significance of the 19th Congress for its contribution to the development of a Marxist-Leninist Constitutionalism with distinctly Chinese characteristics. That development is important not merely for its internal effects but for what it might offer to other states as a model of legitimating constitutionalism (and the construction of constitutional states) that varies in fundamental respects from the forms and expression of constitutionalism and the construction of constitutional states in the West.

And, indeed, to some extent, the emerging structures of Chinese constitutionalism appear tailored not merely to best express Chinese notions of legitimacy in the structuring of a political order, but also to offer alternatives to states which have wrestled with the transposition of Western notions and practices over the course of the last half century or more. More importantly is the comprehensive nature of that objective. Chinese constitutionalism appears to be just one element of a multi-prong effort to provide the world community with an alternative to political, economic, societal and cultural orderings that is meant to challenge the dominance of Western versions. This "all-around" approach is not a secret. Xi Jinping revealed its contours quite openly in his Report to the 19th CPC Congress in October 2017 (Secure a Decisive Victory in Building a Moderately Prosperous Society in All Respects and Strive for the Great Success of Socialism with Chinese Characteristics for a New Era). And thus the reference in the title of the drat article to both the elements of comprehensiveness and to the "New Era".

The Abstract and Introduction follow. Comments and engagement most welcome.

Abstract: The 19th Congress of the Chinese Communist Party concluded at the end of October 2017. It set the fundamental policy positions of China’s leadership for the next five years with particular emphasis on its approaches to constitutionalism, law, and the political theory of the state. These internal political changes will have substantial effects on China’s external relations and on the ways in which Western liberal democracies engage with China. In that context among the most important questions for law revolve around the extent and character of the evolution of CPC thinking, and the CPC Basic Line, with respect to Socialist Rule of Law and Socialist Constitutionalism now bound up in the adoption of “Xi Jinping Thought on Socialism with Chinese Characteristics for a New Era.” The question is central to a consideration of the Work Report delivered by Xi Jinping reflected in the resulting final Resolution of the 19th Congress to amend the Constitution of the Chinese Communist Party and thereafter in 2018 to amend the State Constitution to reflect the advances in political principle and the CPC political framework embedded in the CPC Constitution. A key element of that question involves constitutional trajectory: to what extent did this report reflect an official downshifting of the importance of the state constitution and constitutionalism within the construction of Chinese notions of Constitutionalism, and if so, what variation on constitutionalism is likely to emerge? If so, what are the effects of any such downshift on the relation between the state and the political constitutions of China. To that end, it is worth considering whether principles of constitutionalism for the “New Era” may be extracted from Xi Jinping’s Report to the 19th Congress. And if they can, to try to extract a sense of the likely characteristics of emerging structures of Chinese constitutionalism. What follows, then is a preliminary report and assessment of Constitutionalism with Chinese Characteristics in the New Era from Out of the 19th CPC Report. After this short introduction to the issues and context of Chinese constitutionalism before the 19th Congress, Section II provides a contextual framework for situating the constitutional work of the 19th CPC Congress within contemporary Chinese currents of constitutional theory. Section III then explores the references to notions of constitution in earlier CPC Congress Reports. Section IV then turns to the consideration of the constitution project for China in the “New Era.” It first considers in more detail the understanding of constitution and its role in politics and governance within the 19th CPC Congress Report itself. It then explores the role of constitutionalism within the structures of the 19th CPC Congress Report through a close reading of the specific references to constitutions in the Report (state, political and mixed). Lastly, it provides a concise consideration of the connection between constitutionalism and the emerging characteristics of Chinese consultative democracy.

I. Introduction

The Communist Party of China (CPC)[2] Congress is “a twice-per-decade event to set the party’s national policy goals and elect its top leadership.”[3] The first Congress was held in 1921, on the suggestion of European members of the Comintern,[4] who had urged that the various communist organizations then recently established in China should send representatives to a general Congress.[5] Since then, periodic CPC Congresses have provided a critical space through which the CPC can articulate, develop, and operationalize its objectives as a vanguard party. It provides a formal arena where the vanguard can come together to express the results of a reflexive period of internal dialogue ideally founded on its own process principles.[6] The Congress serves as the meeting at which the leadership is elected and confirmed. It is also the key formal event in which such work can be elaborated and disseminated to the nation at large. “But the practice of quinquennial gatherings dates to Deng Xiaoping’s attempts in the 1980s to introduce a sense of order and predictability after the chaos of the Cultural Revolution.”[7]

With the 19th CPC Congress, held during the last week of October 2017, the CPC has announced that state, party and people have entered into a new historical stage, a “New Era.”[8] “With decades of hard work, socialism with Chinese characteristics has crossed the threshold into a new era. This is a new historic juncture in China’s development.”[9] That New Era itself pointed to a further development of Marxism Leninism in the Chinese context, the “Xi Jinping Thought on Socialism with Chinese Characteristics for a New Era” which was itself at the center of the 19th CPC Report.[10] ”That New Era has a number of important consequences for politics, for law and for the construction of a responsive constitutional state. The first is that the New Era again shifts the fundamental contradiction of society. “As socialism with Chinese characteristics has entered a new era, the principal contradiction facing Chinese society has evolved. What we now face is the contradiction between unbalanced and inadequate development and the people’s ever-growing needs for a better life.”[11] The second is that, like the American approach to politics and law that came before it, “New Era” offers an important alternative to legitimate construction of states and their politics: “It means that the path, the theory, the system, and the culture of socialism with Chinese characteristics have kept developing, blazing a new trail for other developing countries to achieve modernization.”[12] But it also conflates national and international structural and normative development. On the one hand, it conflates with the “China Dream of national rejuvenation”[13] with its transnational implications that it is explained, will see “China moving closer to center stage and making greater contributions to mankind.”[14] Thus, the thrust of the changes announced in the 19th CPC Congress through the articulation of the “New Era” principles “are not merely political, but enhance the "all around" (comprehensive) approach to Chinese development which sees an intimate connection between law, politics, culture, internal and external relations.”[15]

The emerging principal contradiction of the “New Era,” however, does not diminish the role of the vanguard party is its leadership obligations or in its role as the center of political authority in China. “The basic dimension of the Chinese context—that our country is still and will long remain in the primary stage of socialism—has not changed. . . . We must remain fully committed to the Party’s basic line as the source that keeps the Party and the country going and that brings happiness to the people.”[16] To that end the leadership of the CPC—expressed through its Party and state constitutions—is essential.[17] “We must keep on strengthening the Party’s ability to lead politically, to guide through theory, to organize the people, and to inspire society, thus ensuring that the Party’s great vitality and strong ability are forever maintained.”[18] It is to that end that the governance reforms implicit in the “New Era” thinking, “The Thought on Socialism with Chinese Characteristics for a New Era and the Basic Policy” is elaborated.[19]

The 19th Congress of the Chinese Communist Party announced a program of potentially significant development of its constitutional model. The changes required adjustment of the two great instruments of Chinese political legitimacy--first, the constitution of the vanguard Party, the holder of political leadership, and second, from that the modification of the constitution of the administrative state to conform its organization and operation, to ensure that the principles through which it is operated, conforms to that of the political constitution of the vanguard party.[20]

The CPC moved quickly to implement the recommendations of the 19th CPC Congress Report. At the close of the 19th CPC Congress it adopted a Resolution,[21] to amend the Constitution of the CPC[22] to incorporate the thrust of the ideological changes and principles elaborated in the 19th CPC Congress Report. In January 2018, the CPC also announced that the central element of its 2nd Plenum[23] was to be to consider and adopt corresponding amendments to the 1982 State Constitution.[24] That transposition of the work of the CPC into the CPC and State Constitutions evidence the thrust of the Chinese legal-political system, one grounded on the CPC as polity, the CPC Constitution as the expression of binding ideology of that polity, and the state constitution as its expression.[25] The CPC Constitution organizes the government of politics; the State Constitution organizes the government of state, and both under the leadership of the CPC in its vanguard role.

The relationships among these actors and what they might suggest about the evolving theories of Chinese constitutionalism were an object of consideration during the course of a Round Table[26] held shortly after the conclusion of the 19th Congress.[27] In the course of the proceedings, the speakers collectively wondered[28] about the extent and character of the evolution of CPC thinking, and the CPC Basic Line, with respect to Socialist Rule of Law and Socialist Constitutionalism. The question arose in the context of a discussion around the question of the extent to which – the 19th CPC Report delivered by Xi Jinping[29] and the resulting final Resolution of the 19th Congress[30] reflected a downshifting of the importance of the state constitution and constitutionalism in general from the Basic Line of the CPC itself. A related question around the effects of any such downshift on the relation between the state and the political constitutions of China. To that end, it is worth considering whether principles of constitutionalism for the “New Era” may be extracted from the sum of Xi Jinping’s Report to the 19th Congress. What follows, then is a preliminary report and assessment of Constitutionalism with Chinese Characteristics in the New Era from Out of the 19th CPC Report. What follows, then is a preliminary report and assessment of Constitutionalism with Chinese Characteristics in the New Era from Out of the 19th CPC Report.

After this short introduction to the issues and context of Chinese constitutionalism before the 19th Congress, Section II provides a contextual framework for situating the constitutional work of the 19th CPC Congress within contemporary Chinese currents of constitutional theory. Section III then explores the references to notions of constitution in earlier CPC Congress Reports. Section IV then turns to the consideration of the constitution project for China in the “New Era.” It first considers in more detail the understanding of constitution and its role in politics and governance within the 19th CPC Congress Report itself. It then explores the role of constitutionalism within the structures of the 19th CPC Congress Report through a close reading of the specific references to constitutions in the Report (state, political and mixed). Lastly it provides a concise consideration of the connection between constitutionalism and the emerging characteristics of Chinese consultative democracy.

That analysis is grounded in the principle that Chinese constitutionalism cannot be understood as limited to or flowing form the state constitution—an almost entirely Western misreading of the path of constitutionalism in China. Recent scholarship has increasingly suggested the centrality of the CPC to the study of constitutionalism in China, my own work included.[31]

To explain contemporary China, one cannot avoid the CCP, the most important political actor in the country ever since the People’s Republic of China was established in 1949. The CCP, however, has been marginalized in our scholarly research both within and outside China in recent decades when the focus of research on China has shifted to non-party actors such as the state and society.[32]

The CPC continues to play a central role in the development of constitutional norms and their connection with constitution making with Chinese characteristics. This essay provides a small window on the dynamic evolution of Chinese constitutionalism, the central importance of Chinese (rather than Western) political normative context for that development, and the specific shape of emerging constitutional doctrine in what the CPC itself has declared to be a “New Era.” What now clearly emerges is not radical change but rather an important shift in the explicit recognition of the constitutional role of the vanguard party as the center of legitimate political expression, and of the state constitution as the means through which that expression is manifested in the operation of the state. Though it has important roots in traditional socialist constitutionalism,[33] the refinements and developments of Marxist and Leninist theory represents a substantial advance requiring careful study in its own right.

NOTES:

[1] W. Richard and Mary Eshelman Faculty Scholar & Professor of Law & International Affairs, Pennsylvania State University. Special thanks to Miaoqiang Dai (Penn State School of International Affairs M.I.A. expected 2019) and Shan Gao (Penn State Law SJD 2017) for their excellent research assistance (including invaluable translations from the original Chinese) and to the participants in the Roundtable for lively discussion and debate on these issues.

[2] The Communist Party of China (CPC) is a Marxist-Leninist vanguard party whose leadership role in the operation of state, society, politics, economics and culture forms the essential and central element of the political and constitutional system of the Chinese state. It has a long and complex history, with origins in the transposition of Russo-European notions of Marxism and Leninism into China, which was then naturalized within a rich political culture of post-Imperial anti-colonialist nationalism, contentious relations with the counterpart Chinese Nationalist Party (Zhongguo Guomindang (GMD)), Soviet and European state Marxist Leninism, and ultimately developed with Chinese characteristics increasingly after 1949. See, Brief History of the Communist Party of China, China Daily, available http://cpcchina.chinadaily.com.cn/2010-09/07/content_13901594_2.htm,

[4] “In March 1919 leading members of the Communist Party in Russia founded the Communist International (later known as Comintern). The aim of the organization was to fight "by all available means, including armed force, for the overthrow of the international bourgeoisie and for the creation of an international Soviet republic as a transition stage to the complete abolition of the State".” Comintern, Sparticus Educational (n.d.) available http://spartacus-educational.com/RUScomintern.htm. See, Vladimir I. Lenin, The Third, Communist International, in Lenin’s Collected Works, 4th English Edition, Progress Publishers, Moscow, 1972 Volume 29, pages 240-241, reproduced in V. I. Lenin Internet Archive (www.marx.org) 2002 and available https://www.marxists.org/archive/lenin/works/1919/mar/x04.htm (“In March of this year of 1919, an international congress of Communists was held in Moscow. This congress founded the Third, Communist International, an association of the workers of the whole world who are striving to establish Soviet power in all countries. The First International, founded by Marx, existed from 1864 to 1872. . . . The Second International existed from 1889 to 1914, up to the war.”).

[5] The First National Congress of the CPC (中国共产党第一次全国代表大会) was held in Shanghai from 23 July to 2 August 1921 in the course of which the CPC itself was established. See, 中国共产党第一次全国代表大会简介, available http://cpc.people.com.cn/GB/64162/64168/64553/4427940.html (“共产国际代表建议及早召开党的代表大会，宣告中国共产党的正式成立。” [“The Comintern's representative suggested convening the congress of the party as soon as possible and declaring the formal establishment of the Chinese Communist Party.”]) See also , Hans J. Van de Ven, From Friend to Comrade: The Founding of the Chinese Communist Party, 1920-1927 (University of California Press, 1991) (arguing that the CPC emerged from the consolidation and transformation of a group of study societies, that acquired definitive contemporary form only after 1927 as a mass Marxist-Leninist party); see also Tony Saich, The Chinese Communist Party During the Era of the Comintern (1919-1943), prepared for Juergen Rojahn, ed., Comintern and National Communist Parties Project," (International Institute of Social History, Amsterdam ), available https://sites.hks.harvard.edu/fs/asaich/chinese-communisty-party-during-comintern.pdf.

[10] Id., p. 15-23. See Michael A. Peters, The Chinese Dream: Xi Jinping thought on Socialism with Chinese characteristics for a new era, 49(14) Educational Philosophy and Theory, 1299-1304 (2017), available http://www.tandfonline.com/doi/pdf/10.1080/00131857.2017.1407578. “’The Thought is the biggest highlight of the 19th National Congress of the Communist Party of China (CPC) and a historic contribution to the Party's development,’ said Zhang Dejiang when joining a panel discussion at the congress opened Wednesday. ‘This important thought represents the latest achievement in adapting Marxism to the Chinese context, and is an important component of the system of theories of socialism with Chinese characteristics,’ Yu Zhengsheng said while joining another panel discussion.” CPC creates Xi Jinping Thought on Socialism with Chinese Characteristics for a New Era, Xinhua, Oct. 19, 2017, available http://news.xinhuanet.com/english/2017-10/19/c_136689808.htm.

[11] Xi Jinping, “Secure a Decisive Victory in Building a Moderately Prosperous Society in All Respects and Strive for the Great Success of Socialism with Chinese Characteristics for a New Era, supra, pp. 9-10 (“We must recognize that the evolution of the principal contradiction facing Chinese society represents a historic shift that affects the whole landscape and that creates many new demands for the work of the Party and the country.” Id., 10).

[13] Id. National Rejuvenation was elaborated id., at 11-14. Rejuvenation “is designed to hark back to and move on a century of hardship and humiliation, utilising the master narrative of Chinese nationalism to harness Chinese identity and nation building.” Peters, The Chinese Dream, supra, 1302-1303.

[14] Xi Jinping, “Secure a Decisive Victory in Building a Moderately Prosperous Society in All Respects and Strive for the Great Success of Socialism with Chinese Characteristics for a New Era, supra, 10.

[17] This idea found expression in the Resolution of the 19th National Congress of the Communist Party of China on the Revised Constitution of the Communist Party of China (October 24, 2017) (the “Resolution”), available http://news.xinhuanet.com/english/2017-10/24/c_136702726.htm . The Resolution provided, in part that “The Congress holds that the leadership of the Communist Party of China is the most essential attribute of socialism with Chinese characteristics, and the greatest strength of this system; the Party exercises overall leadership over all areas of endeavor in every part of the country.”

[18] Xi Jinping, “Secure a Decisive Victory in Building a Moderately Prosperous Society in All Respects and Strive for the Great Success of Socialism with Chinese Characteristics for a New Era, supra, 14.

[21] Resolution of the 19th National Congress of the Communist Party of China on the Revised Constitution of the Communist Party of China (October 24, 2017) (the “Resolution”), available http://news.xinhuanet.com/english/2017-10/24/c_136702726.htm .

[22] Constitution of the Communist Party of China revised and adopted at the 18th CPC National Congress revised and adopted at the 19th National Congress of the Communist Party of China on Oct. 24, 2017 (“CPC Constitution”), available http://www.china.org.cn/20171105-001.pdf.

[25] Discussed in Larry Catá Backer, Party, People, Government, and State: On Constitutional Values and the Legitimacy of the Chinese State-Party Rule of Law System, 30 B.U. Int’l L.J. 331(2012), available http://www.bu.edu/law/journals-archive/international/volume30n2/documents/article_backer.pdf. This builds and elaborates the classical Leninist notion of the relationship between state, Party and constitution: “the state constitution is by and large a codification of the crucial elements of the communist party program.” Chris Osakwe, The Common Law of Constitutions of the Communist-Party States, 3 Rev. Socialist L. 155, 161 (1977).

[26] Roundtable on the Implications of the 19th Congress of the Chinese Communist Party, Pennsylvania State University School of International Affairs, 3 Nov. 201, available http://www.thecpe.org/?page_id=575.

[27] The Communist Party Congress is “a twice-per-decade event to set the party’s national policy goals and elect its top leadership.” Brookings Institute, China’s 19th Party Congress (2017) available https://www.brookings.edu/product/chinas-19th-party-congress/. “China’s Communist Party has held congresses since its foundation. The first was in 1921. But the practice of quinquennial gatherings dates to Deng Xiaoping’s attempts in the 1980s to introduce a sense of order and predictability after the chaos of the Cultural Revolution.” What is China’s 19th Communist Party congress and why does it matter?, The Economist (Oct. 17, 2017) available https://www.economist.com/blogs/economist-explains/2017/10/economist-explains-11. For English language CPC sources on the 19th CPC Congress, see19th CPCP Congress, available http://www.xinhuanet.com/english/special/19cpcnc/index.htm

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All essays are (c) Larry Catá Backer except where otherwise noted. All rights reserved. The essays may be cited and quoted with appropriate reference. Suggested reference as follows: Larry Catá Backer, [Essay Title], Law at the End of the Day, ([Essay Posting Date]) available at [http address].

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Globalization Law and Policy Series from Ashgate Publishing

Globalization: Law and Policy will include an integrated bodyof scholarship that critically addresses key issues and theoretical debates in comparative and transnational law. Volumes in the series will focus on the consequential effects of globalization, including emerging frameworks and processes for the internationalization, legal harmonization, juridification and democratization of law among increasingly connected political, economic, religious, cultural, ethnic and other functionally differentiated governance communities. This series is intended as a resource for scholars, students, policy makers and civil society actors, and will include a balance of theoretical and policy studies in single-authored volumes and collections of original essays.

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About Me

I hope you enjoy these essays. Each treats aspects of the relationship between law, broadly understood, and human organization. My essays are about government and governance, based on the following assumptions: Humans organize themselves in all sorts of ways. We bind ourselves to organization by all sorts of instruments. Law has been deployed to elaborate differences between economic organizations (principally corporations, partnerships and other entities), political organization (the state, supra-national, international, and non-governmental organizations), religious, ethnic and family organization. I am not convinced that these separations, now sometimes blindly embraced, are particularly useful. This skepticism serves as the foundation of the essays here. My thanks to Arianna Backer for research assistance.